The success of the military campaign against Isis in Syria and Iraq has left behind a diplomatic and legal problem: what to do with the British citizens who travelled to join and fight with Isis, but who have survived hostilities. The problem has been brought to a head by the capture, by a group of Syrian Kurds, of El Shafee Elsheikh and Alexanda Kotey — two Londoners who were members of ‘the Beatles’, a group which tortured and beheaded at least 27 hostages.
There is little use in looking to the government for consistent guidance as to what should happen to the two men, who have been stripped of their British citizenship. Last October Rory Stewart, then a foreign office minister, suggested that ‘nearly all Britons who joined IS should be killed’ — a view that was echoed by the incoming defence secretary, Gavin Williamson, a few weeks later. Yet this week another foreign office minister, Tobias Ellwood, took a very different tack, saying that the pair must be made to ‘answer to a legitimate authority’ such as the International Criminal Court (ICC). The US, which might previously have shipped the fighters to the legal limbo of Guantanamo Bay, has declined to take responsibility for the men, and wants them returned to Britain to face trial.
Seventy years on from the Nuremberg trials, the world is still no closer to settling on a way of bringing war criminals to justice. We have the ICC in the Hague, but it is not recognised by the US, Russia or China — three powers whose membership is surely vital to the success of any body claiming to be an international court. Moreover, the wheels of justice at the ICC turn so slowly that it has pioneered a variation on the death penalty: proceedings drag on so long that defendants have a habit of dying before a verdict can be reached. In its 16-year history the ICC has succeeded in convicting just three defendants, from the Congo and the Central African Republic. Four, including Serbian leader Slobodan Milosevic, have died during trial.
The absence of a proper system for dealing with captured Isis terrorists has resulted in a bizarre disparity. So long as they are physically within a war zone, the government feels entitled to take the Rory Stewart option: seek them out and eliminate them by drone strike, whether they are in combat or not. If they manage to make it out of that war zone, on the other hand, they are supposed to be treated to a full civilian trial, with bewigged defence barristers hired at public expense to speak on their behalf.
There is a serious problem with the latter course: civilian trials are designed for civilian offences, where evidence is relatively easy to amass and witnesses relatively easy to obtain. War zones are a different matter. It is true that some jihadis will have helped prosecution lawyers considerably by filming their beheadings and posting them on YouTube. But in the absence of self-incriminating material, how could a team of prosecution lawyers in London be expected to interview and gather sufficient evidence from inside Isis’s fallen territory to secure a conviction, even if realistically we knew full well that the defendants had committed murders or aided and abetted them?
There is a danger that Isis fighters returned to Britain to face trial would find themselves being acquitted on lack of evidence, or convicted of only minor offences. Soon they would be free to return to the civilian population. This would present a serious risk to national security. We do have security services, of course, but not with the facility to keep a constant watch on hundreds of former Isis fighters. Around 800 Britons are believed to have travelled to Isis territory, of whom 400 are believed already to have returned. That is itself an alarming prospect, without their numbers being inflated with the hardcore of fighters who remained with Isis until the end.
Last autumn Max Hill, the government’s independent reviewer of terror legislation, suggested that some Isis fighters returning to Britain could be rehabilitated. It is not an enticing prospect. Perhaps some of those Britons who travelled to join Isis will have genuinely had a conversion to peace, but it is certain that many of them will not. They remain enemy combatants, albeit for an enemy which no longer has much of a physical manifestation. Isis has not gone for good, however. It remains an active influencer of the minds it has already poisoned, and a continued terrorist threat.
We should not as a country encourage or tolerate extra-judicial killing. If we do not respect the Geneva Convention, the damage to our national reputation will be such that it will make it much harder for our troops to operate abroad. But neither can we expect to deal with war criminals through our ordinary judicial system.
If there was ever a situation which demanded some legal innovation, this is surely it. The government should investigate the means by which Isis fighters can be brought to some kind of local justice, to be tried by the people whom until recently they were oppressing in such an inhumane manner. So long as there is some kind of judicial process, which we are able to observe, we will have respected the fighters’ human rights — something they so callously ignored with their victims.
How much better for the civilians who have lived under the yoke of Isis that they be involved with the trial and punishment of the group’s surviving fighters. Isis’s victims have lived under evil; it should now be part of their catharsis that they be trusted with the prosecution of their oppressors.